A distressing number of respected conservatives are still defending Chief Justice John Roberts’ decision to uphold Obamacare. For example, Charles Krauthammer recently said on Fox News:
Had the Democrats presented the mandate as a tax it would not have passed in the House and Senate. That is precisely why the president kept saying it’s not a tax…
So I think it [the Roberts ruling] will, practically speaking, make it harder [to expand government], because it will be harder to expand the size of government under the guise of a tax because people don’t like taxes…
But is this true? What exactly in the Roberts’ decision will force Democrats to expand federal power as a ‘tax’? Obama and the Democrats sold Obamacare as a penalty, not a tax. Did Roberts punish them for this? No. He rewarded them by upholding the law.
So my challenge to Roberts’ conservative defenders is this: Can you identify a fact pattern where Roberts’ Obamacare decision would dictate that a federal court should strike down a new law passed by Congress?
For example, “Congress passes a law that says X. A lower court must strike down this law because Roberts’ Obamacare decision held y.”
I can’t think of anything Congress could do now that couldn’t be re-written retroactively by a court to fit under Roberts’ expanded taxing clause power.
Can anybody?
